10.25.2010

Drafts amendments - rough and untimely translation

I’ve finally found some time to post a(n untimely) and rough translation of the draft amendments to the criminal law.

The translation is based on the version of the PRC Criminal Law published by the Congressional-ExecutiveCommission on China.

General part

Article 17 (Criminal responsibility)

Article 38 (Control)

Article 49 (Limits to the use of the death penalty)

Article 50 (Commutation of the death penalty with a suspension of execution)

Article 63. (Mitigated punishment)

Article 65. (Ordinary recidivism)

Article 66. (Special recidivism)

Article 67. (Voluntary surrender)

Article 68. (Meritorious service)

Article 69. (Commission of more than one crime before judgment has been pronounced)

Article 72. (Conditions of use) – Suspension of sentence

Article 74 (Suspension of sentence not used on recidivists)

Article 76 (Probation period and its positive results)

Article 77 (Revocation of suspension)

Article 81 (Conditions of use)

Article 83. (Probation period) - Parole

Article 85. (Probation period and its results) – Parole

Article 86. (Revocation of parole)

Article 100. (Reporting of criminal record)

Special part

Article 107. (Providing financial support to criminal activities endangering state security)

Article 109. (Defection)

Article 133. (Disturbing traffic)

Article 141. (Production and sale of fake medicines)

Article 151. (Smuggling arms, ammunitions, nuclear materials, counterfeit currency, cultural relicts, precious metals, rare animals, rare plants and their products)

Article 153 (Smuggling ordinary goods and articles)

Article 157 (Shielding smuggling with arms, resisting the seizure of smuggled goods)

Article 164 (Bribery of company or enterprise personnel)

Article 199 (Death penalty for some crimes of financial fraud)

Article 200 (Financial fraud by units)

Article 205 (Defrauding tax refunds for export or tax by forging VAT invoices)

Article 206 (Forging or selling special invoices for VAT)

Article 210 (Theft, fraud)

Article 226 (Buying or selling by force)

Article 234 (Intentional wounding)

Article 244 (Forced labor)

Article 264 (Theft)

Article 274 (Extortion by blackmail)

article 151 - draft amendment

Article 151. (Smuggling arms, ammunitions, nuclear materials, counterfeit currency, cultural relicts, precious metals, rare animals, rare plants and their products) Whoever smuggles arms, ammunitions, nuclear materials, or counterfeit currency shall be sentenced to imprisonment of over seven years, with a fine or forfeiture of property; if circumstances are particularly serious, they are to receive a life sentence or the death penalty; if circumstances are relatively minor he is to be sentenced to no less than three years and no more than seven years fixed-term imprisonment and a concurring fine.

Whoever smuggles out of the country prohibited cultural relics, or rare animals and their products that are probihited by the state from being imported or exported, or those smuggling gold, silver, and other precious metals shall be sentenced to more than five and less than ten years fixed-term imprisonment and a concurring fine; if circumstances are particularly serious, he shall be sentenced to more than ten years fixed-term imprisonment or receive a live sentence, with a fine of forteiture of property; if circumstances are relatively minor he shall be sentenced to no more than five years fixed-term imprisonment and a fine.

Whoever smuggles rare plants or their products or any other goods or articles that are prohibited by the state from being imported or exported shall be sentenced to no more than five years fixed-term imprisonment or criminal detention, and or a fin; if the circumstances are serious, he shall be sentenced to not less than five years fixed-term imprisonment and be fined.

Units violating provisions under this article shall be fined, with personnel directly in charge and other directly responsible personnel being punished under the respective paragraphs of this article.

article 141 - draft amendment

Article 141. (Production and sale of fake medicines) Whoever produces or sells fake medicines is to be sentenced to not more than three years of fixed-term imprisonment or criminal detention and may in addition or exclusively be sentenced to a fine of not less than 50 percent and not more than 200 percent of the sale amount; when causing serious harm to human health, or when other serious circumstances are involved is to be sentenced to not less than three years and not more than ten years of fixed-term imprisonment and may in addition be sentenced to a fine of not less than 50 percent and not more than 200 percent of the sale amount; when causing death or particular harm to human health, is to be sentenced to not less than ten years of fixed-term imprisonment, life imprisonment, or death penalty and may in addition be sentenced to a fine of not less than 50 percent and not more than 200 percent of the sale amount or confiscation of property.
The fake medicines referred to in this article mean those fake medicines as well as those medicines and non- medicines that fall into such a category as to be dealt with as fake medicines in accordance with the regulations of the "Law of the PRC Governing the Management of Pharmaceutical Products."

article 133 - draft amendment

Article 133. (Disturbing traffic) Whoever violates traffic and transportation laws and regulations thereby giving rise to major accidents involving severe injuries, deaths, or great losses of public and private properties are to be sentenced to not more than three years of fixed-term imprisonment; when fleeing the scene after an traffic and transportation accident or under other particularly odious circumstances, to not less than three years and not more than seven years of fixed-term imprisonment; when running away causes a person’s death, to not less than seven years of fixed-term imprisonment.

Those who are intoxicated by alcohol and drive vehicles on a road or conduct racing contests on a road and circumstances are odious, are to be sentenced to criminal detention and a concurring fine.

article 109 - draft amendment

Article 109. (Defection) If a state organ personnel, during the time of performing his public functions, leave his post without authorization and defects from the country; or if the defection takes place when he is already outside the country, he is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights; when the circumstances are serious, he is to be sentenced to not less than five years and not more than 10 years of fixed-term imprisonment.

When a state personnel handling state secrets commits the crime in the preceding paragraph, he is to be heavily punished according to the stipulations in the preceding paragraph.

Article 107 - draft amendment

Article 107. (Providing financial support to criminal activities endangering state security). The provision of financial support to commit the crimes stipulated in Articles 102, 103, 104, and 105 is punished with no more than five years of fixed-term imprisonment in the case of persons directly in charge, criminal detention, control or deprivation of political rights. If circumstances are serious, it is punished with more than five years fixed-term imprisonment.

Article 206 - draft amendment

Article 206 (Forging or selling special invoices for VAT) Whoever forges or sells forged special invoices for value- added tax shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; if the number involved is relatively large or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; if the number involved is huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or be sentenced to confiscation of property.

Where a unit commits the crime mentioned in this Article, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed- term imprisonment of not more than three years, criminal detention or public surveillance; if the number involved is relatively large or if there are other serious circumstances, they shall be sentenced to fixed- term imprisonment of not less than three years but not more than 10 years; if the number involved is huge, or if there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment.

Current version

Article 206 Whoever forges or sells forged special invoices for value- added tax shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; if the number involved is relatively large or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; if the number involved is huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or be sentenced to confiscation of property.

Whoever forges or sells forged special invoices for value-added tax shall, if the number involved is especially huge, and the circumstances are especially serious so that economic order is seriously disrupted, be sentenced to life imprisonment or death and also to confiscation of property.

Where a unit commits the crime mentioned in this Article, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed- term imprisonment of not more than three years, criminal detention or public surveillance; if the number involved is relatively large or if there are other serious circumstances, they shall be sentenced to fixed- term imprisonment of not less than three years but not more than 10 years; if the number involved is huge, or if there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment.

article 205 - draft amendment

Article 205 (Defrauding tax refunds for export or tax by forging VAT invoices) Whoever falsely makes out special invoices for value-added tax or any other invoices to defraud a tax refund for exports or to offset tax money shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; if the amount of money involved is relatively large or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; if the amount of money involved is huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or be sentenced to confiscation of property.

Where a unit commits the crime mentioned in this Article, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed- term imprisonment of not more than three years or criminal detention; if the amount involved is relatively large or if there are other serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the amount involved is huge, or if there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment.

Falsely making out special invoices for value-added tax or any other invoices to defraud a tax refund for exports or to offset tax money refers to any act of falsely making out the said invoices for another, for oneself, or asking another to do so for oneself, or recommending another to do so.

Whoever falsely makes out invoices not mentioned by article 205 of this law if the circumstances are serious shall be sentenced to not more than two years fixed-term imprisonment, criminal detention or control, and a concurring fine. If there are especially serious circumstances, they shall be sentenced to more than two years and less than seven years fixed-term imprisonment, and a concurring fine.

Where a unit commits a crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished according to provisions in the preceding paragraph.

Current version

Article 205 Whoever falsely makes out special invoices for value-added tax or any other invoices to defraud a tax refund for exports or to offset tax money shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; if the amount of money involved is relatively large or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; if the amount of money involved is huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or be sentenced to confiscation of property.

Whoever commits the act mentioned in the preceding paragraph to defraud tax money of the State shall, if the amount involved is especially huge, and the circumstances are especially serious, thus causing especially heavy losses to the interests of the State, shall be sentenced to life imprisonment or death and also to confiscation of property.

Where a unit commits the crime mentioned in this Article, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed- term imprisonment of not more than three years or criminal detention; if the amount involved is relatively large or if there are other serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the amount involved is huge, or if there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment.

Falsely making out special invoices for value-added tax or any other invoices to defraud a tax refund for exports or to offset tax money refers to any act of falsely making out the said invoices for another, for oneself, or asking another to do so for oneself, or recommending another to do so.

Article 200 - draft amendment

Article 200 (Financial fraud by units) Where a unit commits the crime mentioned in Article 192, 194 or 195 of this Section, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and may be also sentenced to a fine; if the amount involved is huge, or if there are other serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and a concurring fine; if the amount involved is especially huge, or if there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and a concurring fine.

Article 200 Where a unit commits the crime mentioned in Article 192, 194 or 195 of this Section, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount involved is huge, or if there are other serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the amount involved is especially huge, or if there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment.

article 199 - draft amendment

Article 199 (Death penalty for some crimes of financial fraud) Whoever commits the crime mentioned in Article 192 of this Section shall, if the amount involved is especially huge, and especially heavy losses are caused to the interests of the State and the people, be sentenced to life imprisonment or death and also to confiscation of property.

Article 194 refers to the crimes of fraud by means of bills, fraud by means of financial bills, article 195 punishes the crime of fraud by means of a letter of credit.

Current version

Article 199 Whoever commits the crime mentioned in Article 192, 194 or 195 of this Section shall, if the amount involved is especially huge, and especially heavy losses are caused to the interests of the State and the people, be sentenced to life imprisonment or death and also to confiscation of property.

article 164 - draft amendment

Article 164 (Bribery of company or enterprise personnel) Whoever, for the purpose of seeking illegitimate benefits, gives money or property to any employee of a company, an enterprise or other units, if the amount involved is relatively large, shall be sentenced to fixed- term imprisonment of not more than three years or criminal detention; if the amount involved is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined.

Whoever, for the purpose of seeking illegitimate commercial benefits, gives money or property to a civil servant of a foreign state or to an official or international public organizations shall be sentenced according to the preceding paragraph.

Where a unit commits the crime as mentioned in the preceding paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished according to the provisions in the preceding paragraphs.

Any briber who confesses the bribery voluntarily prior to prosecution may be given a mitigated punishment or be exempted from punishment.

Current version

Article 164 Whoever, for the purpose of seeking illegitimate benefits, gives money or property to any employee of a company or enterprise, if the amount involved is relatively large, shall be sentenced to fixed- term imprisonment of not more than three years or criminal detention; if the amount involved is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined.

Where a unit commits the crime as mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished according to the provisions in the preceding paragraph.

Any briber who confesses the bribery voluntarily prior to prosecution may be given a mitigated punishment or be exempted from punishment.

Article 157 - draft amendment

Article 157 (Shielding smuggling with arms, resisting the seizure of smuggled goods) Whoever shields smuggling with arms shall be given a heavier punishment in accordance with the provisions in the first paragraph of Article 151 of this Law.

Whoever, by means of violence or threat, resists the seizure of smuggled goods shall be punished for the crime of smuggling and the crime of preventing State functionaries from performing their duties according to law, as stipulated in Article 277 of this Law, and in accordance with the provisions regarding the combined punishment for several crimes.

The fourth paragraph of article 151 allowed the use of life imprisonment or the death penalty.

Current version

Article 157 Whoever shields smuggling with arms shall be given a heavier punishment in accordance with the provisions in the first or fourth paragraph of Article 151 of this Law.

Whoever, by means of violence or threat, resists the seizure of smuggled goods shall be punished for the crime of smuggling and the crime of preventing State functionaries from performing their duties according to law, as stipulated in Article 277 of this Law, and in accordance with the provisions regarding the combined punishment for several crimes.

article 210 - draft amendment

Article 210 (Theft, fraud) Whoever steals special invoices for value-added tax or any other invoices which can be used to defraud a tax refund for exports or to offset tax money shall be convicted and punished in accordance with the provisions in Article 264 of this Law.

Whoever fraudulently obtains special invoices for value-added tax or other invoices which can be used to defraud a tax refund for exports or to offset tax money shall be convicted and punished in accordance with the provisions in Article 266 of this Law.

Whoever holds forged invoices and their amount is relatively big, shall be punished with not more than two years fixed-term imprisonment, criminal detention or control and a concurring fine. If their amount is enormous, he shall be punished with not less than two years and not more than seven years fixed-term imprisonment, and a concurring fine.

Current version

Article 210 Whoever steals special invoices for value-added tax or any other invoices which can be used to defraud a tax refund for exports or to offset tax money shall be convicted and punished in accordance with the provisions in Article 264 of this Law.

Whoever fraudulently obtains special invoices for value-added tax or other invoices which can be used to defraud a tax refund for exports or to offset tax money shall be convicted and punished in accordance with the provisions in Article 266 of this Law.

article 153 - smuggling - draft amendment

Article 153 (Smuggling ordinary goods and articles) Whoever smuggles goods or articles not specified in Articles 151, 152 and 347 of this Law shall, in the light of the seriousness of the circumstances, be punished in accordance with the following provisions respectively:

(1) If he smuggles goods or articles and evades or dodges a rather big amount of payable duties or has twice received administrative penalties on account of smuggling in one year and still smuggles goods or articles, he shall be sentenced to not more than three years fixed term imprisonment or criminal detention, and to a concurring fine between one and five times the amount of payable duties he has dodged.

(2) If he smuggles goods or articles and evades or dodges an enormous amount of payable duties, he shall be sentenced to not less than three and not more than ten years fixed-term imprisonment, and to a concurring fine between one and five times the amount of payable duties he has dodged. If the circumstances are especially serious, he shall be sentenced to not less than ten years fixed-term imprisonment or life imprisonment, and to a concurring fine between one and five times the amount of payable duties he has dodged or to confiscation of property.

(3) If he smuggles goods or articles and evades or dodges a particularly enormous amount of payable duties, he shall be sentenced to more than ten years fixed-term imprisonment or to life imprisonment, and to a concurring fine between one and five times the amount of payable duties he has dodged or to confiscation of property.

Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than 10 years.

Whoever smuggles goods or articles many times, and goes unpunished shall be punished on the basis of the cumulative amount of the payable duties he invades or dodges in smuggling goods or articles.

Current version

Article 153 Whoever smuggles goods or articles not specified in Articles 151, 152 and 347 of this Law shall, in the light of the seriousness of the circumstances, be punished in accordance with the following provisions respectively:

(1) If he smuggles goods or articles and evades or dodges payable duties to the amount of more than 500,000 yuan, he shall be sentenced to fixed- term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than one time but not more than five times the amount of payable duties evaded or dodged or be sentenced to confiscation of property; if the circumstances are especially serious, he shall be punished according to the provisions in the fourth paragraph of Article 151 of this Law.

(2) If he smuggles goods or articles and evades or dodges payable duties to the amount of more than 150,000 yuan but less than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined not less than one time but not more than five times the amont of payable duties evaded or dodged; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than one time but not more than five times the amount of payable duties evaded or dodged or be sentenced to confiscation of property.

(3) If he smuggles goods or articles and evades or dodges payable duties to the amount of more than 50,000 yuan but less than 150,000 yuan, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined not less than one time but not more than five times the amount of payable duties evaded or dodged.

Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than 10 years.

Whoever smuggles goods or articles many times, and goes unpunished shall be punished on the basis of the cumulative amount of the payable duties he invades or dodges in smuggling goods or articles.